DECISION ON PROSECUTION’S SUBMISSION OF THE EXPERT REPORTS
OF HELGE BRUNBORG PURSUANT TO RULE 94bis AND MOTION FOR THE ADMISSION
OF TRANSCRIPTS PURSUANT TO RULE 92bis(D)

__________________________________________________

The Office of the Prosecutor

Mr. Geoffrey Nice

The Accused

Slobodan Milosevic

Amicus Curiae

Mr. Steven KayMr. Branislav TapuskovicMr. Timothy McCormack

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991 ("the
International Tribunal"),

BEING SEISED of the Prosecution’s Submission of the Expert Reports
of Helge Brunborg Pursuant to Rule 94bis and Motion for the Admission
of Transcripts Pursuant to Rule 92bis(D), filed on 20 October 2003 ("Motion")
by the Office of the Prosecutor ("Prosecution"), seeking the admission
into evidence of the transcripts and associated exhibits of Helge Brunborg’s
evidence given in the trial Prosecutor v. Radislav Krstic ("Krstic
transcripts"), as well as the "Report on the Number of Missing and
Dead from Srebrenica" dated 12 February 2003 and "Addendum on the
Number of Missing and Dead from Srebrenica" dated 12 April 2003 (together
"Expert Reports"),1

NOTING that the Prosecution accepts that this witness be required to
attend for cross-examination by the Accused in respect of his testimony in the
Krstic trial,

NOTING that it is expected that the Prosecution will seek to ask supplemental
questions in chief and admit further exhibits when Helge Brunborg testifies,

NOTING that the Prosecution proposes that the "Report on the Size
and Ethnic Composition of the Population of Kosovo" dated 14 August 2003
and "Addendum on the Size and Ethnic Composition of the Population of Kosovo"
dated 12 September 2003 (together "Kosovo Reports"), and the Expert
Reports be introduced on 20 November 2003, where Helge Brunborg is scheduled
to testify,

NOTING the Amici Curiae Reply to Prosecution Submission of the Expert
Reports of Helge Brunborg Pursuant to Rule 94bis and Motion for the Admission
of Transcripts Pursuant to Rule 92bis(D) Dated 20 October 2003, filed on 27
October 2003 ("Reply") by the Amici Curiae ("Amici"),

NOTING the Amici submission that, in the light of the Scheduling
Order of 24 May 2002, the Prosecution are applying to introduce a new expert
report with new material and that, in the circumstances, the Prosecution should
not be given leave to call the evidence in the Expert Reports submitted under
the Motion,

NOTING the Amici submission that the opportunity should not be
taken for evidence to be adduced which is additional or supplemental to the
original report, which would otherwise be contrary to Rule 94bis which
requires service of a full report, although it would be acceptable to explain
the report, but not to use live testimony as a means of providing new information
which takes the other party by surprise,

NOTING the Amici submission that, as per the Trial Chamber Decision
on Prosecution’s Application for Admission of Written Statement of Dr.
Berko Zecevic Pursuant to Rule 92bis(A),dated 9 September 2003
("Zecevic Decision"), the proper procedure for calling expert
evidence is under Rule 94bis, that Helge Brunborg is to be called to
give evidence anyway, that the Krstic Transcripts are being used in addition
to the Expert Reports, and that the evidence is not being used in lieu
of oral testimony, which constitute an incorrect use of the Rule 92bis
procedure,

NOTING that Rule 92bis(D) provides:

A Chamber may admit a transcript of evidence given by a witness in proceedings
before the Tribunal which goes to proof of a matter other than the acts and
conduct of the accused.

NOTING that Rule 94bis provides

(A) The full statement of any expert witness to be called by a party shall
be disclosed within the time-limit prescribed by the Trial Chamber or by the
pre-trial Judge.
(B) Within thirtydays of disclosure of the statement of the expert
witness, or such other time prescribed by the Trial Chamber or pre-trial Judge,
the opposing party shall file a notice indicating whether:
(i) it accepts the expert witness statement; or
(ii) it wishes to cross-examine the expert witness; and
(iii) it challenges the qualifications of the witness as an expert or the
relevance of all or parts of the report and, if so, which parts.
(C) If the opposing party accepts the statement of the expert witness, the
statement may be admitted into evidence by the Trial Chamber without calling
the witness to testify in person.

NOTING Articles 20 and 21 of the Statute,

CONSIDERING the Accused’s general opposition to the admission
of Rule 92bis evidence,

CONSIDERING that the evidence presented therein does not go to proof
of the acts and conduct of the Accused, that it is not proximate to the Accused;
and that it is not so pivotal to the issues in the case and is therefore admissible
under Rule 92bis,

CONSIDERING the Zecevic Decision which denied the Prosecution’s
motion to admit the written statement of Berko Zecevic, subject for the witness
being available for cross-examination by the Accused,

CONSIDERING that the witness is an expert and therefore the proper procedure
to be followed in calling his evidence is set out under Rule 94bis,